- The Constitution of India is the most important source of Law India.
- The power of the Parliament to amend the Constitution makes it clear that our Constitution has been drafted in such a way as to make it compatible with the changing society.
- This power of the Parliament, though restricted, has a far reaching effect on the country as it helps the law to modify according to the changes over the years.
- Reservation is one of important as well as controversial policies introduced in India with an aim to maintain a balance between equality and justice.
- This scheme too needs timely modifications, and accordingly different Constitutional Amendments have created an impact on the functioning of this system in India.
INTRODUCTION: CONSTITUTION- A LIVING DOCUMENT
A Constitution is a document that lists down a specific number of articles, in parts, highlighting about the manner in which a country is to be constituted, and the principles and norms that it is required to follow. Be it written or unwritten, the Constitution is an important source of law for any state, just like our country, India. There are numerous benefits of drafting a Constitution and the most important among those is that it gives an individual his/her fundamental identity as a citizen by bestowing upon her/him certain rights and duties. This is crucial for human development which surely adds value to a country’s growth.
The functions of a Constitution are many. Some of these include the concept of fundamental rights; prescription of rules and regulations to be followed by the society, both individually and collectively; establishment of procedures concerning the formation of Government/s; determination of powers and duties of the Government; provisions for making the government and its authorities more accountable, effective, and transparent; setting limitations on Governmental functioning; etc.
The Indian Constitution is in the written form, and is a mixture of rigid and flexible laws. The doctrine incorporated the principle of federalism yet favoured a strong Union, and, thereby designating itself as a Quasi-federal country. Many other features including independence of judiciary, single citizenship, parliamentary form of government, directive principles of state policy, concept of residual powers, fundamental duties, etc. have made our Constitution a unique doctrine. The main aim of drafting such a complicated and vast document was to ensure justice to every citizen even in the remotest part of the country and perhaps, the Constitution makers have moreover succeeded in the same, thanks to the Indian National Movement and Partition. However, the real task lies in the implementation of these policies which is the duty of the Government. The Government is the topmost authority that is designated to protect the rights and interests of its citizens and accordingly it is authorised to make and amend laws.
AMENDMENT OF THE CONSTITUTION
Article 368 in Part XX of the Constitution of India deals with the Parliament’s power to amend the constitution, through which it can add, repeal or modify any provision of the Constitution except the basic structure. Article 368 recognizes three kinds of amendment procedures, namely, by simple majority, by special majority, and by special majority with ratification of half of the state legislatures. The Amendment system in India has been partially taken from the USA system. There have been more than 100 Amendments made in India. However, as mentioned earlier, the Parliament is not authorised to amend the principles covered under the “basic structure” of the Constitution. This rule was laid down by the Supreme Court in the famous Keshavanand Bharti v. State of Kerala (1973) case. This makes us realise that the Supreme Court is basically the final authority to determine the validity of such amendments. The reason for giving such a high power to the Apex Court is simple. When the government is given this power to amend the constitution, it indirectly empowers it to change the entire shape of the Constitution too. It is not correct to assume that the Government is always right, there might sometimes be prejudice, bias, and mala fide intentions from its end too. For this purpose, the Supreme Court has been designated as the guardian of the Indian Constitution, and accordingly, it came up with the basic structure doctrine which cannot be amended. This is to strengthen and retain the strong base of our Constitution.
RESERVATION POLICY IN INDIA
There are several policies that often trigger debates and one among them is the reservation scheme. It recurrently creates a tussle between the Government and the Judiciary. The Constitution of India recognizes the principle of reservation for the benefit of three main groups, the Scheduled Tribes (STs), the Scheduled Castes. (SCs), and the Other Backward Classes (OBCs). Among them, the STs and SCs were the earliest communities to get the benefits of reservation, as they were given some special provisions even before the enactment of the Constitution. Traces can be found in the Government of India Act, 1935. However, the same is not the case with the OBC category, and this makes it the most controversial criterion for reservation. Unlike SCs and STs, there is no specific class of OBCs. There are different communities in different parts of the country who may come under this list. Not only the Centre, but also the States are empowered to identify the communities that can be a part of the OBC list. However, the Government makes caste as the sole basis for determining the OBC category. Apart from these three groups, reservations are also extended to women, persons with some disabilities, and religious groups.
The reservation scheme is mostly available in public education and public employment. This would also include promotions, and minority institutions. However, there are some private sectors, too, having such reservation policies in their educational institutions or employment sector. However, every scheme has certain limitations, and so does reservation. In Indra Sawhney v Union of India (1992), the Supreme Court held that reservation policy should be limited to 50%. This 50% ceiling has further triggered controversies since the Constitution does not prescribe any such limit. Nonetheless, there are still some states in India that have reservations exceeding the 50% limit, for example, Tamilnadu.
IMPORTANT CONSTITUTIONAL AMENDMENTS WITH RESPECT TO RESERVATIONS
Articles 15 and 16 gave way to the Government to implement reservation policies to maintain a balance between equality and social justice. These articles allow reservation for women, SCs, STs, OBCs, etc. to enable their adequate representation in the society. Articles 330, 332 and 334 enables reservation of seats in the Union and State Legislature/s for the SCs and STs. Like other laws, this also needed constant monitoring and amendments. Therefore, the Government had made several amendments to modify the reservation policy. Some of the important aspects of the Constitutional Amendments, in this respect, are as follows:
- Constitution (Eighth Amendment) Act, 1960 : Generally, when the makers drafted the Constitution, they intended to keep the reservation system in the Legislature. The same was reflected in Article 334 of the Constitution. However, when the Government witnessed very little progress, it enacted the 8th Constitutional Amendment in 1960, and extended the scheme for more than ten years till 1970.
- Constitution (Twenty third Amendment) Act, 1970 : Reservation for SCs, STs and Anglo-Indians in the Legislature was further extended for more ten years, till 1980
- Constitution (Forty Fifth Amendment) Act, 1980 : Reservation for SCs, STs and Anglo-Indians in the Legislature was extended till 1990.
- Constitution (Fifty First Amendment) Act, 1986, Constitution (Fifty Seventh Amendment) Act, 1987, Constitution (Seventy Second Amendment) Act, 1992 : These Amendments enabled the SCs and STs from some north eastern states to reserve their seats in the Lok Sabha and the respective the Legislative Assemblies.
- Constitution (Sixty Second Amendment) Act, 1989 : Reservation for SCs, STs and Anglo-Indians in the Legislature was extended further up to 2000.
- Constitution (Sixty Fifth Amendment) Act, 1990 : This Amendment established the National Commission for the Scheduled Tribes and Scheduled Castes. This Commission was constituted under Article 338 of the Constitution to protect the rights and interests of the SCs and STs.
- Constitution (Seventy Sixth Amendment) Act, 1994: This Amendment was made after the Indra Sawhney Judgement that prescribed a 50% limit on reservation. As seen earlier, some states had not followed the order because there’s no such mandatory provision in the Constitution. Tamil Nadu is one such state that has 69% of reservation in the State. However, the Government considered such exemption as just and fair owing to the facts and circumstances, and decided to put the State’s policy beyond the purview of the judiciary. Accordingly, it amended Schedule 9 of the Constitution and included Tamil Nadu’s Reservation Act of 1994 within it to protect it from judicial review.
- Constitution (Seventy Seventh Amendment) Act, 1995 : In the Indra Sawhney case, the Supreme Court had ruled that no reservations should be given in promotions, and that such policies must be confined to initial stages only. To nullify this verdict, the Parliament had amended Article 16 and added a new provision to it. Accordingly, the States were given the power to make reservations in promotions for SCs and STs who are not adequately represented.
- Constitution (Seventy Ninth Amendment) Act, 2000 : The Reservation for SCs, STs and Anglo-Indians in Legislature was extended for another ten years till 2010.
- Constitution (Eighty First Amendment) Act, 2000 : Again, in the Indra Sawhney case, the Top Court held that while filling up backlog vacancies, the limit of 50% must be followed. This provoked the Parliament to enact the 81st Amendment Act that added one more provision to Article 16. According to it, unfilled reserved vacancies should be considered as a separate class, and the same should not be mixed up or merged with other vacancies. In simple words, the Amendment nullified the 50% ceiling in cases of backlog vacancies.
- Constitution (Eighty Second Amendment) Act, 2000 : This Act provides for relaxation in qualifying marks and other standards for reservation in promotion in public services.
- Constitution (Eighty Fifth Amendment) Act, 2002 : Article 16 was further amended to protect ‘consequential seniority’ in promotion under the reservation policy for the government servants belonging to the SCs and STs.
- Constitution (Ninety Third Amendment) Act, 2006 : One of the provisions under Article 15 of the Constitution is to provide reservations to persons who are less likely to have adequate representation otherwise. The Parliament, by the 93rd Amendment Act, added to it that socially and economically backward classes should be provided with reservations in public and private educational institutions, except minority institutions. For this purpose, the Union Government enacted the Central Educational Institutions (Reservation in Admission) Act, 2006 whereby 27% of seats were reserved for such Other Backward Classes (OBCs) in all central higher education institutions. The Supreme Court, in 2008, validated both the Amendment Act as well as the Reservation in Admission Act. However, it also directed the Centre to exclude the Creamy Layer category from reservation schemes. ‘Creamy Layer’ is a part of the OBC category that is comparatively more advanced than others therein.
- Constitution (Ninety Fifth Amendment) Act, 2010 : This Act further extended reservation for SCs, STs and Anglo-Indians in the Legislature for more than ten years till 2020.
- Constitution (One Hundred and Second Amendment) Act, 2018 : Through this Act, the National Commission for Backward Classes (NCBC) got the constitutional status. It also deals with the structure, powers and duties of the NCBC by amending Article 338 of the Constitution. Besides, it also inserted clause 342A in Article 342 wherein it empowered the President, in consultation with the Governor, to specify and notify the list of Socially and Economically Backward Classes (SEBCs) in the States and Union Territories. By virtue of this Amendment Act, it was purported that States have lost their power to make their own list of SEBCs. The same was affirmed by the Supreme Court in 2021 in Jaishri Laxmanrao Patil v. Chief Minister, Maharashtra (2021).
- Constitution (One Hundred and Third Amendment) Act, 2019 : A new exception was added to Articles 15 and 16 of the Constitution to provide reservation to Economically Weaker Sections (EWS). Accordingly, 10% reservation has been provided to the EWS category who do not fall within the SC, ST, or OBC classes. This 10% reservation is granted in admissions to educational institutions (Article 15) and public employment (Article 16).
- Constitution (One Hundred and Fourth Amendment) Act, 2020 : The reservation for SCs and STs was extended further, however, the reservation for Anglo-Indians was struck down.
- Constitution (One Hundred and Fifth Amendment) Act, 2021 : The 127th Constitutional Amendment Bill proposes the enactment of the Constitution (One Hundred and Fifth Amendment) Act, 2021.The Bill made three amendments to the Indian Constitution:
- A proviso was inserted in clause (9) of Article 338B that states that nothing in the clause (9) of the Article would affect clause (3) of Article 342A.
- Article 342A was modified, and besides other changes, clause (3) was inserted that restored the State's power of preparing and maintaining its own list of backward classes, and such entries may be different from the Central List.
- In Article 366, clause 26 C was amended. Accordingly, “socially and educationally backward classes'' means such backward classes as are deemed under article 342A for the purposes of the Central Government or the State or Union territory, as the case may be.”
This Amendment is a reaction to the Supreme Court’s observations in Jaishri Laxmanrao Patil v. Chief Minister (2021) case. It restored the States' power to specify their own OBC lists.
The Centre’s duty to provide reservations to the deserving is not an easy task. It requires a lot of analytical skills and community participation. There should absolutely be no prejudice while determining the seats for reservation. We may find from the above observations that the SCs, STs, and OBCs are the most important categories of this scheme. However, unlike SCs and STs, it is very difficult to define the OBCs. Since different states find different kinds of backward people, they were empowered with this power to make their own OBC list. However, this can also lead to other problems, such as dominance of advanced OBCs. For instance, the Marathas of Maharashtra and Patels of Gujarat are seeking reservation under OBC category. This would ultimately allow them to enjoy most of the reserved seats, leaving behind those who actually need this policy.
The various Constitutional Amendments, that modified the reservation system in India, have ultimately failed to consider and address this issue which is particularly blocking a lot of unprivileged people from accessing the reservation scheme. It was only the Supreme Court’s timely intervention that has at least allowed us to understand about the politics within the reservation system. Out of 18 major Amendment Acts, some were concentrated purely on extending the reservation in the Legislature, while others focused on nullifying certain impugned directions of the Top Court. There has been little positive impact on the scheme through the Constitutional Amendments. Only a few acts have actually supported welfare state schemes, like the 76th, 77th, 81st and 93rd Amendment Acts.
However, the real problem lies in the implementation which is crucial to check if the scheme reaches those people whom the scheme had intended to benefit. In a shocking revelation, the Justice Rohini Commission Report stated that top 10 castes out of the existing more than 2000 sub-castes have availed the benefits of reservation. Nearly 1000 backward communities have no representation, the Commission analysed. This poses an important question on the equitable distribution of seats. It manifests in the poor implementation strategy despite having such a solid representation system.
The Reservation System is essential for a country like India which is experiencing strong inequality among the citizens. Articles 14 of the Constitution expects that all the citizens must be treated equally. However, the existing differences in the society, which found its roots in the ancient times, cannot be simply abrogated by virtue of Article 14. We first require to bring every single community within the main society and make sure that even the remote groups have equal representation like others. This is possible only with the Reservation System. The Constitutional Amendments that were enacted to alter the existing irregularities in the Constitution had also touched upon the reservation system. However, it is important for the authorities to give more importance in the application and implementation of these principles.